Redskins Lose Right to Trademark Protection

The Washington Redskins have no right to trademark their
name because it is disparaging to Native Americans, a
three-judge panel of the U.S. Patent and Trademark
Office ruled yesterday.

In a decision that gave nearly total victory to a group
of Native Americans who filed a complaint in 1992, the
board ordered the cancellation of federal registration
of seven Redskin trademarks, including the team's name
and the helmet logo showing an Indian's head in profile.

The 145-page ruling does not prevent the team from
continuing to use the Redskins name and the related
logos. But it could jeopardize the millions of dollars
in revenue that the National Football League reaps from
the sale of Redskins merchandise because the team would
no longer be able to use federal law to prevent others
from putting the logos on items such as T-shirts and
caps.

The board's decision will not take effect until the
Redskins have had a chance to appeal.

"This is fabulous," said lead plaintiff Suzan Shown
Harjo, a District resident and member of the Cheyenne
tribe. "I never expected to see justice done in my
lifetime. . . . This is an absolutely mighty landmark
[of] societal change that we are watching."

The Redskins have no plans to change the team's name,
and they will appeal the decision to the U.S. Court of
Appeals for the Federal Circuit, said the team's
attorney, John Paul Reiner. The team also plans to use
state patent law to protect the logos and name from
infringement, he said.

"We regret the opinion, and we think it's wrong," Reiner
said. "We are going to continue to protect the marks
vigorously."

National Football League spokesman Greg Aiello declined
to comment on the decision.

Though Native American groups have long protested names
and symbols they find offensive -- including the
Cleveland Indians' logo and the tomahawk chop used by
Atlanta Braves fans -- this marks the first time that a
federal agency has come down on their side.

On the state level, the Utah Supreme Court ruled this
year in a case involving complaints by Native Americans
about several license plates that bore variations on the
word "redskin." A state agency had rejected the
challenge, but the Supreme Court ordered the agency to
reconsider.

A 1946 federal trademark law says names cannot be
protected if they are "disparaging, scandalous,
contemptuous or disreputable."

In yesterday's ruling, the patent board relied on
testimony from linguists and historians that the term
"redskin" has long been used in a pejorative sense to
refer to Native Americans. The board also cited a survey
commissioned by the plaintiffs that found that 46
percent of the general public considered the word
"offensive to me."

"A substantial composite of the general public finds the
word 'redskin(s)' to be a derogatory term of reference
for Native Americans . . . [and] the derogatory
connotation of the word . . . extends to the term
'Redskins,' as used in [the football team's] marks," the
panel wrote.

The judges ruled that the term was disparaging to Native
Americans and tended to bring them "into contempt or
disrepute."

The decision to cancel the Redskins' trademarks is
"extremely unusual," said Trotter Hardy, a professor at
the College of William and Mary who specializes in
intellectual property law. "I've never heard of it
happening on these grounds. . . . Marks are sometimes
not registered initially because they are [disparaging]
. . . but I've never heard of [the Patent and Trademark
Office] canceling a mark."

A portion of revenue from the sale of NFL merchandise is
kept by the league, and the rest is distributed evenly
among all the teams, generating about $5 million a year
for each club.

It was not clear how much impact the board's decision,
if upheld, would have on the NFL's ability to profit
from the Redskins name and logos, which have been
trademarked since 1967 in some cases.

Hardy and the Redskins attorneys said that even if the
Redskins lose on appeal, the trademark will still have
significant protection under state and common law. "It
may make it harder for [the team] to stop infringement,
but it does not mean that the mark is fair game," Hardy
said.

But the board's finding that the word "redskin" is
derogatory could undermine the Redskins' case in state
courts, said Stephen R. Baird, one of the attorneys for
the Native American plaintiffs. "It is going to create
all kinds of . . . legal defenses for anyone who wants
to rip off Redskins T-shirts," he said.

Reiner said the team may challenge the constitutionality
of the 1946 trademark law under the First Amendment
because standards for determining what words and logos
are offensive are "vague and unclear."

But Baird said that the federal appeals court has
already rejected several First Amendment challenges to
the same law.

The Washington Redskins were originally located in
Boston and called the Boston Braves, but owner George
Preston Marshall changed the moniker to Redskins in 1933
to avoid confusion with the local baseball team. In
1937, the team moved to Washington. At the time, the
team was coached by Lone Star Dietz, who was part Sioux.

In a brief filed with the patent board, Reiner argued
that the Redskins name was adopted by Marshall "out of
respect for American Indian heritage and tradition and
was never intended to belittle or insult."

Mike McCall, the team's director of public relations,
said in a statement last night that "the Redskins
believe its name honors native Americans and has for the
past 67 years."

Because yesterday's decision focused very sharply on the
term "redskin" and its linguistic history, it does not
necessarily make other teams with Native American names
vulnerable to similar challenges, lawyers said. The same
survey that showed nearly half of respondents consider
"redskin" offensive found that only 10 percent of those
surveyed felt the same way about the word "braves."